August 31, 2012

Inside Business Law

Contract Drafting: The Use of Form Agreements

  • At the recent ABA Annual Meeting, the Business Law Section's UCC Committee presented a program titled "Commercial Law Forms: One Size Does Not Fit All; Tips on How to Use Forms Wisely," which provided information about using form agreements as a drafting starting point. While using such documents can seem like a great place to begin, "fill in the blank" precedents are often not sophisticated enough to fulfill the requirements of complex situations. Developing an expert system that provides explanations as to the role served by a provision in the document, statutory and case law authority underlying the provision, alternative wording depending on the situation or bargaining power of the party, supplementary provisions to be used in particular situations, and additional resources that discuss the transaction are all essential elements of developing an expert system that will start the drafting process off a little more efficiently, thus providing a better product for your client. The program further includes guidelines on how to turn form agreements into effective contracts and tips on ethically using forms in drafting retention agreements.
  • The Business Law Education Committee also presented topics on contract drafting. The materials of the presentation can be found at "Contract Drafting: What Litigators Wish You Would Include." The materials provide an overview of merger clauses, choice of law clauses, forum selection clauses and jurisdictional waivers and indemnification provisions. Sample IP agreements are also included in the conference materials.

Corporate Counsel

  • At the recent ABA Annual Meeting in Chicago, a program that identified the significant challenges corporate litigation presents and that offered advice to help inside and outside counsel address these challenges as effectively as possible was presented to attendees. The materials, which can be found at "Corporate Litigation Problems That Keep General Counsel Awake at Night and How to Solve Them," addressed how in-house and outside counsel can assist their corporate client in minimizing financial liability, regulatory risk, and reputational harm arising from litigation. Additionally, the program focused on how in-house and outside counsel can assist their corporate client in managing and staffing litigation cost-effectively.

Common Mistakes of M&A Practitioners; Critical Cross-Border Issues

  • At the recent ABA Annual Meeting in Chicago, the Mergers and Acquisitions Committee presented "Common Mistakes Made by M&A Lawyers," which outlined common mistakes made by the M&A practitioner at the due diligence stage, as well as during the drafting stage of the transaction. Tips were given on how to avoid accidental indemnification, achieving clarity in ensuring proper survival language, and indemnification concerns, to name only a few common mistake areas that were covered. The program also addressed international M&A issues and ethical challenges. A must read for any M&A practitioner!
  • Several practitioners also discussed critical issues in cross-border M&A at the ABA Annual Meeting: "Cross-Border M&A: Critical Issues for U.S. Counsel." The presentation at the meeting in Chicago addressed topics more specifically on the due diligence review in foreign jurisdictions, bilateral investment treaties in investments in emerging economies, bribes, bank secrecy and changes to the U.S. Patriot Act, and business in Argentina.
  • The White Collar Crime Committee in August presented recent trends in anti-corruption compliance. The committee discussed recent U.S. enforcement trends and penalties. The materials are available at "What Every M&A and Private Equity Transactional Lawyer Needs to Know About the Foreign Corrupt Practices Act," and provide an overview of applicable anti-corruption laws.

Trends in Healthcare M&A

  • The first few years of a young lawyer's practice can set the tone for the years ahead. Therefore, getting off on the right foot is a must. The Young Lawyer Committee recently presented a very informative program that focused on effective professional-development and career-management strategies for young lawyers at every experience level and addressed specific challenges and strategies for young lawyers wanting to take charge of their careers, with particular attention to issues confronting diverse attorneys. Additionally, the use of social media to advance professional-development goals was also discussed. The presentation materials can be found at "Taking Charge: Pathways to Success for Young Lawyers."
  • For young lawyers wishing to work with nonprofit organizations, the Young Lawyer Committee also discussed basic concepts and best practices in nonprofit formation and governance. The materials from their presentation at the ABA Annual Meeting can be found at "One Foot in Front of the Other: Basics and Best Practices in Nonprofit Formation and Governance."